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Officer Michael Cutillo at Thursday's hearing.

By Travis Andersen, Town Correspondent

Lawyers for two Malden Police officers who missed promotions despite top scores on a civil service exam pleaded their case before the chairman of a state employment commission on Thursday in Boston, urging him to declare the men eligible for two sergeant vacancies in the department.

"This is indeed a tale of two eligibility lists," said state Representative Christopher Fallon, lead attorney for Michael Cutillo and John Kelley, the two officers. Fallon is also chief counsel to the Malden Police union.

Cutillo and Kelley finished first and second, respectively, in a civil service exam in late 2006 that all officers must take to be eligible for promotion. According to state regulations, the test scores are valid for two years, meaning Cutillo and Kelley's results would have expired last March.

But a sergeant position opened in January, which according to department precedent should have gone to Cutillo, the top scorer. Malden Police Commissioner Anthony Spadafora - who has the final say on promotions but must make them from the eligibility list - alleged in an affidavit that Chief Kenneth Coye blocked the promotion because of a personal dislike for Cutillo, who handled a car accident investigation involving Coye's daughter about 13 years ago.

Coye denied that charge in testimony before Civil Service Commission chairman Christopher Bowman on Thursday.

"Obviously [Cutillo] didn't get promoted, so [he] would need some reason to vilify me," Coye said, adding that he felt Kelley had better qualifications to serve as a sergeant.

But that's all moot, Coye insisted, since Spadafora has final authority on promotions. Spadafora - who missed Thursday's hearing because of a medical procedure - said in his affidavit that he couldn't promote Cutillo, since Coye destroyed the eligibility list after the slot opened.

"I threw it away," Coye said on Thursday, because Mayor Richard Howard told department heads in a February memo to hold off on promotions because of budget concerns.

Howard confirmed that in his testimony on Thursday, adding that he rescinded the memo in early April, when new funding sources materialized. By then a second sergeant position had opened, and while Cutillo and Kelley's scores had technically expired, the state didn't release a new eligibility list from a 2008 test until mid-May.

Fallon and his team pounced on the time lapse Thursday, arguing that according to state statute, an expired eligibility list remains valid until state officials release a new one, meaning that in April - when Howard gave the OK for promotions and the city applied for certifications from the state - Cutillo and Kelley should have filled the vacancies.

Howard appeared convinced of that during a break in Thursday's hearing. Asked if he felt Cutillo and Kelley should be eligible for the sergeant posts, he said, "Absolutely."

Kelley took the test in 2008 and scored high enough to remain eligible for the vacancies, while Cutillo did not take that test. He told Bowman on Thursday that it would have burdened his family.

Four other officers - Margaret MacDonald, Steven Noble, Frank Spinale, and Evan Tuxbury - also scored high enough in 2008 to be considered for the promotions. Cutillo and Kelley are asking the state to either reactivate the old list or put them ahead of the four officers on the new one.

Those four officers have hired their own attorney, Alan Shapiro of Sandulli Grace, PC in Boston, to make sure that doesn't happen. Shapiro regularly interjected on Thursday, arguing that the new list is the one of record. His clients attended the hearing but declined comment, as did Cutillo and Kelley.

Lawyers for Cutillo and Kelley, as well as the city - represented by City Solicitor Kathryn Fallon, Christopher' Fallon's niece - have 30 days to file briefs on the matter, at which time Bowman could decide to call more witnesses. If he declines, a decision would come within 60 days of receiving the briefs.

Let me get this staright, theses two topped the sgt test and two openings were there and they werent promoted? The money for these jobs was already in the budget and they werent promoted? How much does it possibly cost to make two cops sgts? I smell a scam. I hope civil service does the right thing this time

Posted by Red Sox FanAugust 21, 09 02:13 PM

But the positions were from the 2008 budget, and were approved at the beginning of the year. I think that Howard is playing Innocent but really he is the one that gave the order not to hire because no matter what the paper says he has the final say as to when someone gets promoted. Not the police commissioner, by the way he is the one who appoints the commissioners, so you are going to tell me that the commissioner has the final say as to when someone gets hired.. " I THINK NOT"

Posted by a civil servantAugust 21, 09 05:33 PM

Type your comment here...Promote Spinale. I served with him in the Army and found his integrity to be beyond reproach.

Posted by James S GuildAugust 21, 09 06:28 PM

Then where is the money? Someone said that money was factored into the budget, so if there was no promotion there should be left over money, correct? We did not use what money we had if we did not promote.

Posted by MaldenAugust 21, 09 08:05 PM

You see in government if you don't use the money that you were budgeted for it goes back in the what they call the general fund and your selectman dictate were the money ends up after that. but the money we are talking for promotions of 2 police officers is not the much money.

Posted by civil servant August 22, 09 11:25 AM

At what point is the Mayor going to start holding this chief responsible. Between the "no siren=car accidents", the promotional disaster and all of the other discouraging things this chief has done, Howard needs to make a change. I can not imagine how the morale in this department is, and as a citizen it is disturbing to think about how these police officers are effected by this. It is a constant abuse of his power, and it needs to stop.

Posted by atwhatpointAugust 22, 09 12:42 PM

We live in Malden meaning we won't see or know where the money went.
There needs to be a salary cap on these positions.

Posted by MaldenAugust 22, 09 01:19 PM

Poor Officer Cutillo. He looks like he hasn't eaten in months because of this scandal.

Posted by Jenny CraigAugust 22, 09 03:37 PM

Ofc Cutillo said it would have been a burden on his family. What about every other cop in this state who takes the exam every year. I'm sure its a burden for them as well. Take a look at their salaries on page one. They dont appear to be "burdened" too excessively. Just Curious? how much has the city spent on attorney fees for this fiasco? More than the cost of two Sergeants I bet. Good luck to all involved, its a shame that politicians can insert themselves into civil service and manipulate the system.

Posted by ChrisAugust 22, 09 04:45 PM

Malden has the great new Pay As You Throw Away trash day and it's gone over JUST GREAT ......... Mabey they should put in a Tax on getting pulled over and getting a ticket ........... Or Better still PAY AT THE SCENE OF THE CRIME first in the nation ........ you pay the fine do the time and pay for the police time involved TIPS WELCOME!!!

Posted by Mr wizardAugust 22, 09 06:57 PM

Malden police needs a clean sweep of all its top bosses they have lied to us all for too long and now look at what the city became

Posted by HooperAugust 23, 09 02:10 PM

I am a local merchant in Malden and speak to officer's every day. Absolutely right, the morale is down the drain. Time for the Chief to treat these guys like Cops and not Kindergartners. It is a professional environment, not a personal attack arena. He creates a hostile and unpleasant environment that make these guys miserable when they are at work.

Posted by RubberAugust 25, 09 08:32 PM

No politics in police is the answer. Let the police function as they should without politicial influence. Hire a chief the right way as the other cities in this state do. Use the police budget the way it was meant to be used not to give it back at the expense and safety of the publlic and police officers this money was intended for.

Posted by GTornado BoyAugust 26, 09 11:17 PM

Run this force into the ground at the expense of the public and the people who help the public. A convienent story comes out about how much city employees make. Timing is everything and people aren't stupid. I agree Malden is not having a crime wave. The city is lost thanks to political games.

Posted by KenAugust 31, 09 02:36 PM

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